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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


NOTICE 


Modem  American  Law  Lecture 


Blackstone  Institute,  Chicago 


NOTICE 


BY 

GEORGE  FITCH  WELLS,  A.B.,  LL.D. 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blacksto7ie  Institute 


BLACKSTONE     INSTITUTE 
CHICAGO 


Copyright,     1916,     by    Blackstone    Institute 
Copyright,    1921,    by    Blackstone    Institute 


T 


GEORGE  FITCH  WELLS 


GEORGE  FITCH  WELLS 

Mr.  Wells  is  a  native  of  Iowa.  He  is  a  graduate 
of  the  Law  School  of  the  University  of  Michigan. 
Previous  to  studying  law  there  he  had  pursued 
studies  at  Carleton  College  at  Northfield,  Minne- 
sota, and  at  Oberlin  College,  Oberlin,  Ohio. 

On  his  admission  to  the  Bar  in  Ohio  in  1895,  he 
entered  at  once  upon  the  general  practice  of  law  in 
the  city  of  Toledo  and  so  continued  until  the  fall 
of  1912.  In  1898  he  was  appointed  lecturer  upon 
the  subject  of  Medical  Jurisprudence  in  the  Toledo 
Medical  College,  and  continued  his  services  in  that 
connection  for  about  fourteen  years.  In  the  sum- 
mer of  1908  Mr.  Wells  was  instrumental  in  organ- 
izing a  law  department  in  connection  with  St. 
John's  College  in  Toledo,  and  for  four  years  was 
closely  identified  therewith,  both  as  a  teacher  and 
in  an  administrative  capacity. 

In  September,  1912,  Mr.  Wells  gave  up  the 
active  practice  of  the  law  and  removed  from  To- 
ledo to  Morgantowu,  West  Virginia,  where  he 
accepted  a  professorship  in  the  College  of  Law 
of  West  Virginia  University.  Two  years  later 
he  was  invited  to  the  deausliip  of  the  Law  School 
of  the  University  of  North  Dakota,  which  posi- 
tion he  accepted  and  now  holds. 

Mr.  Wells  is  the  author  of  "Medical  Jurispru- 
dence" and  "Extra-Hazardous  Occupations"  in 
Modern  American  Law. 


NOTICE 

By 
Geo.  p.  Wells,  A.B.,  LL.D. 

The  word  "Notice,"  as  used  in  legal  terminology, 
has  a  technical  meaning — in  fact,  it  has  two  distinct 
technical  meanings.  In  the  equity  branch  we  have 
what  is  known  as  the  *' Doctrine  of  Notice,"  but 
more  often  spoken  of  simply  as  "Notice."  This  is 
a  part  of  the  substantive  law  of  Equity  Jurispru- 
dence— the  rules  laid  down  for  the  guidance  of  men 
in  their  daily  conduct  of  business  and  social  affairs 
one  with  another.  The  adjective  side  of  the  law, 
including  equity,  also  makes  use  of  the  term 
"Notice."  By  "adjective  law,"  or  "the  adjective 
side  of  the  law,"  we  mean  the  rules  which  govern 
procedure  in  the  trial  of  causes ;  and  sometimes,  too, 
we  mean  the  more  or  less  formal  dealings  between 
individuals  respecting  their  various  rights.  It  will 
be  well,  perhaps,  to  consider  Notice  first  as  an  equit- 
able doctrine,  and  later  as  a  more  formal  part  of  the 
law  having  to  do  mth  procedure. 

THE  EQUITABLE  DOCTRINE  OF  NOTICE :   WHAT  IS  IT? 

The  doctrine  concerns  itself  with  conflicting  claims 
to  property;  or  perhaps  it  would  be  better  to  say, 
with  rights  in  and  to  property.    We  often  meet  the 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

statement  that  various  equitable  rights  and  remedies 
are  not  available  against  one  who  is  a  bona  fide 
purchaser  without  notice ;  or  that  they  are  enforce- 
able against  one  who  purchased  with  notice.  Now, 
what  does  that  mean  ?  Does  it  mean  that  if  A  buys 
a  piece  of  land  from  B,  against  which  land  C  has 
some  claim — ^a  mortgage,  for  instance — the  existence 
of  which  is  unknoAvn  to  A,  then  C  cannot  enforce  his 
mortgage  lien  as  against  A's  interest?  Well,  it  may 
mean  just  that,  and  it  may,  on  the  other  hand,  mean 
just  the  opposite,  depending  upon  some  further 
details.  If,  for  instance,  C's  mortgage  had  been  filed 
for  record  with  the  proper  official  of  the  county 
within  which  the  land  is  situated,  he  may  have  his 
remedy  of  foreclosure  and  sale  because  A  is  consid- 
ered to  have  had  notice  of  the  mortgage  from  the 
mere  fact  of  its  having  been  recorded,  or  filed  for 
record,  even  though  he  had  no  knotvledge  whatever 
of  its  existence.  The  reason  for  such  a  rule  is  that 
courts  and  legislatures  have  deemed  it  more  equit- 
able to  all  concerned  to  require  an  intending  pur- 
chaser to  make  careful  examination  of  the  books  of 
records  for  anything  which  might  adversely  affect 
his  title  to  the  property,  than  it  would  be  to  compel 
the  lien  holder  to  search  out  all  possible  intending 
purchasers  and  bring  the  fact  of  his  lien  to  their 
personal  knowledge.  And  so,  growing  out  of  this 
equitable  rule,  we  have  our  recordation  acts  which 
provide  that  the  holder  of  a  deed,  mortgage,  or  other 
instrument  affecting  the  title  to  land  may  fully 
protect  his  interest  in  such  land  as  against  later  pur- 
chasers or  lien  holders  by  recording  his  instrument 


NOTICE  7 

in  the  designated  public  office.  Indeed,  some  of  the 
states  go  further,  and  declare  the  lien  holder  pro- 
tected if  he  has  left  the  instrument  in  the  proper 
office  with  instructions  to  record  it,  even  though  it 
is  never  actually  placed  upon  the  record  books,  or 
although  such  a  mistake  has  been  made  in  copying 
it  into  the  record  books  that  it  does  not  give  notice 
as  to  the  land  actually  encumbered. 

But  suppose  C  has  not  recorded  his  mortgage; 
then,  under  the  facts  assumed,  that  A  had  no  knowl- 
edge of  C's  claim,  it  would  appear  that  A  ought  to 
have  a  good  defense  to  C's  action  of  foreclosure. 
That  is  exactly  the  case,  but  subject,  however,  to  one 
exception:  if,  in  spite  of  the  fact  that  C  had  failed 
to  file  his  mortgage  in  the  proper  recording  office, 
and  in  spite  of  the  further  fact  that  A  did  not  know 
of  the  existence  of  such  mortgage,  yet  if  A  had  such 
infomiation  or  knowledge  of  other  facts  as  would 
induce  an  ordinarily  careful  and  prudent  man  to 
make  further  inquiry  or  investigation  into  the  con- 
dition of  the  title  of  the  land  he  was  about  to  pur- 
chase, and  such  investigation  or  inquiry  would  have 
revealed  the  existence  of  C's  mortgage,  A  would 
then  be  held  to  have  had  notice.  And  this  would  be 
the  case  even  though  A  had  not,  in  fact,  made  such 
investigation  or  inquiry.  This  is  what  is  known  as 
'''putting  a  man  on  inquiry,"  and  is  a  very  important 
feature  of  the  equitable  doctrine  of  notice. 

The  late  Professor  Bispham,  in  his  work  upon 
Equity,  has  spoken  of  Notice  as  "the  legal  cogni- 
zance of  a  fact  .  .  .  the  definite  legal  cognizance, 
either  actual  or  presumptive,  of  a  right  or  title ;  and 


8  MODERN  AMERICAN  LAW  LECTURE 

the  doctrine  of  Notice  in  Equity  may  be  described  to 
be  this,  viz. :  that  where  such  cognizance  is  shown  to 
exist,  either  by  proof  as  a  fact  or  by  presumption 
of  law,  the  right  or  title  thus  proved  to  be  known, 
will  be  capable  of  assertion  in  equity  as  against  a 
party  who  might  otherwise  and  at  law  have  disre- 
garded it. ' '  And  it  wdll  be  seen  from  the  illustration 
above  given  that  Notice  does  not  necessarity  mean 
knowledge :  for  notice  often  exists  without  any  actual 
knowledge,  while  not  infrequently  there  may  be 
actual  knowledge  without  that  which  in  law  amounts 
to  Notice.  For  instance,  courts  are  often  under  the 
necessity  of  taking  ''judicial  notice"  of  facts  of 
which  no  actual  proof  can  be  made  in  the  trial  of 
the  cause;  and  it  not  infrequently  happens  that 
court  and  jury  may  be  obliged  to  pay  no  attention 
to  certain  facts  which,  although  they  are  known  or 
proved  to  exist,  cannot  be  considered  in  the  judicial 
determination  of  the  matter  in  litigation.  So,  too, 
if  A,  before  he  became  an  intending  purchaser  and 
opened  negotiations  for  the  land,  should  be  shown 
a  mortgage  against  it,  not  by  the  mortgager  or  the 
mortgagee,  but  by  some  third  person  in  whose  hands 
the  instrument  happened  to  be  at  the  time,  A  would 
certainly  have  knowledge  of  the  instrument;  and  if 
he  afterward  purchased  the  land,  he  would  do  so  in 
the  full  light  of  such  knowledge,  although  in  the 
legal  sense  of  the  term  he  has  not  had  notice  of  the 
mortgage.  The  various  business  affairs  of  our 
daily  life,  often  highly  complicated,  make  it  neces- 
sary that  notice  shall  frequently  take  the  place 
of  actual  knowledge;  but  it  must  not  be  inferred 


NOTICE  9 

from  this  that  actual  knowledge  is  not  to  have  the 
same  effect  upon  the  rights  of  the  parties  that 
notice  has.  Notice  is  but  a  substitute  for  actual 
knowledge,  which  good  policy  requires  in  human 
dealings.  Speaking  in  the  legal  sense,  Notice  may 
be  defined  as  "information  concerning  a  fact  actually 
communicated  to  a  party  by  an  authorized  person, 
or  actually  derived  by  him  from  proper  sources,  or 
else  presumed  by  law  to  have  been  acquired  by  him, 
which  information  is  regarded  as  equivalent  in  its 
legal  effects  to  full  knowledge  of  the  fact,  and  to 
which  the  law  attributes  the  same  consequences  as 
would  be  imputed  to  knowledge." 

The  equitable  doctrine  of  notice  requires  that  the 
person  to  be  charged  with  notice  must  have  received 
it  himself.  It  will  not  be  sufficient,  for  instance,  in 
order  to  charge  A  with  notice,  to  show  merely  that 
A's  vendor  had  notice:  if  A  himself  had  no  notice 
he  has  a  good  defence.  And  it  has  been  held  that 
the  doctrine  goes  even  to  this  extent,  viz:  that  if  A 
is  an  innocent  purchaser  of  the  legal  title  for  value, 
even  though  his  vendor  had  notice  of  an  outstanding 
equity,  and  A  afterwards  conveys  to  a  third  person, 
B,  who  had  notice  of  such  equity,  still  B  would  have 
a  good  title  and  could  protect  himself  by  A's  want 
of  notice.  This  rule  is  for  A's  benefit,  not  B's, 
although  B  may  incidentallj^  profit  by  it;  for  if  the 
rule  were  otherwise,  it  might  well  happen  that  after 
A's  bona  fide  purchase  for  value,  without  notice, 
something  might  occur  which  would  serve  as  notice 
to  all  the  world,  and  if  the  rule  were  not  as  it  is, 
the  property  would  be  unsaleable  in  A's  hands,  and 


10  MODERN  AMERICAN  LAW  LECTURE 

locked  up  there,  because  he  could  never  find  a  pur- 
chaser not  affected  with  notice.  But  if,  in  this  case, 
A  should  sell  back  again  to  his  vendor,  or  if  the 
property,  after  23assing  through  the  hands  of  several 
o\vners  subsequent  to  A,  finally  comes  again  into  the 
hands  of  A's  vendor,  the  notice  which  he  originally 
had  would  re-attach  and  he  (A's  vendor,  the  ultimate 
purchaser)  would  be  bound  thereby.  The  reason  for 
this  is  that  it  would  be  grossly  unjust  and  inequitable 
to  permit  the  man  who  had  originally  committed 
the  wrong  to  thus  perfect  his  title  and  reap  the 
benefit  of  his  own  wrong ;  nor  will  it  work  an}^  great 
hardship  upon  A,  for  it  only  removes  one  customer 
(his  vendor)  from  the  market. 

Another  feature  of  the  doctrine  of  notice  which 
is  important  to  consider  growls  out  of  the  time  when 
notice  is  given.  Of  course  it  is  beyond  question  that 
notice  of  an  equity  which  does  not  reach  the  pur- 
chaser of  property  until  the  consideration  has  been 
paid  and  the  conveyance  completed  is  too  late;  and 
it  is  just  as  clear  that  if  the  purchaser  has  neither 
paid  out  his  money  nor  acquired  legal  title  before 
receiving  notice  of  some  adverse  claim  or  lien,  such 
notice  ought  to  be  binding  upon  him.  But  suppose 
the  purchaser  obtains  a  deed  giving  him  the  legal 
title,  but  before  he  pays  the  purchase  money  he  gets 
notice?  Or  suppose  that  he  has  paid  the  purchase 
price  in  ignorance  of  any  outstanding  equity,  but 
before  the  conveyance  is  made  to  him  he  receives 
notice?  What  is  to  be  done  then?  The  rule  has 
become  established  in  England  in  such  cases,  that 
the  purchaser  is  not  protected  unless  the  entire 


NOTICE  11 

transaction  was  completed — money  paid  and  convey- 
ance made — before  legal  notice;  and  it  will  not  aid 
liim  if  he  has  received  his  deed  and  paid  a  part  of 
the  purchase  money:  the  full  purchase  price  must 
have  been  paid  before  notice.  In  the  United  States 
the  same  rule  obtains  in  a  case  where  the  conveyance 
is  made  but  no  money  paid  before  notice  is  received ; 
but  where  the  purchase  money  has  been  paid  either 
in  whole  or  in  part,  and  notice  then  comes  to  the 
purchaser  before  he  receives  his  deed,  he  ^Vill  be 
protected,  in  many  of  the  states,  to  the  extent  of  the 
amount  of  money  paid  by  him  before  notice.  How- 
ever, in  some  of  the  earlier  cases  in  a  few  of  the 
states — New  York,  Illinois  and  New  Jersey,  for 
instance — the  English  rule  is  followed. 

KINDS  OF  NOTICE—ACTUAL  AND  CONSTRUCTIVE 

Notice  is  classified  as  either  Actual  or  Construc- 
tive; and  Actual  Notice  is  again  to  be  considered 
as  direct,  and  as  indirect  or  presumptive  notice. 
Direct,  or  positive,  actual  notice  is  instanced  when 
direct  information  of  a  fact  is  brought  to  a  party 
directly;  indirect  or  presumptive  or  implied  notice 
consists  in  the  knowledge  by  a  party  of  circumstances 
which  lead  to  a  knowledge  of  such  fact.  On  the 
other  hand,  constructive  notice  is  that  notice  which 
binds  a  party  by  virtue  of  a  conclusive  presumption 
of  law.  This  legal  presumption  is  drawn  from  the 
attending  facts  and  circumstances,  and  is  to  the 
effect  that  a  party  must  necessarily  have  received 
communication  of  knowledge.  The  facts  and  cir- 
cumstances must  be  proved,  but  when  they  are  estab- 


12  MODERN  AMERICAN  LAW  LECTURE 

lished,  the  presumption  arises — "a  legal  inference 
from  established  facts,  which,  like  other  legal  pre- 
sumptions, does  not  admit  of  dispute." 

It  may  seem  that  there  is  little,  if  any,  difference, 
but  great  confusion  instead,  between  constructive 
notice  and  implied  or  presumptive  notice.  The  dif- 
ference, however,  is  not  very  obscure.  We  may  say 
that  implied  notice  is  an  inference  or  presumption 
of  fact,  but  one  which  may  be  explained  or  contra- 
dicted by  proof;  while  constructive  notice  is  a  pre- 
smnption  of  law  which  may  not  be  controverted  by 
proof.  For  instance,  if  one  receives  such  informa- 
tion as  will  put  him  upon  his  inquiry,  that  is  said 
to  amount  to  notice.  If  he  fails  to  make  the 
inquiries  which  his  information  suggests,  he  is  pre- 
sumed to  have  wilfully  turned  away  from  a  knowl- 
edge of  the  real  condition  of  the  matter,  and  the  law 
presumes  as  a  conclusion  of  fact  that  he  really  knows 
what  he  would  have  known  if  he  had  taken  the 
proper  steps  to  inform  himself.  But  if  he  does,  in 
fact,  inquire,  but  fails  to  discover  the  fact  after  an 
honest  effort  to  do  so,  the  presumption  of  his  knowl- 
edge of  that  fact  will  be  rebutted.  An  example  of 
constructive  notice  is  found  in  the  recording  of  a 
deed  or  other  instrument  affecting  title  to  land. 
Under  the  registry  acts  every  one  is  bound  to  take 
notice  of  the  condition  of  the  title  to  any  piece  of 
land  as  shown  by  the  instruments  filed  for  record  in 
the  county  where  the  land  is  situated;  the  law  con- 
clusively presumes  a  party  to  have  knowledge  of 
that  which  has  been  recorded  or  left  for  record,  and 
this  presumption  cannot  be  overthrown.    Professor 


NOTICE  13 

Robinson,  in  his  Elementary  Law,  says  that ' '  A  pre- 
sumption of  law  is  a  conclusion  adopted  arbitrarily 
by  the  law  as  its  chosen  interpretation  of  established 
facts."  As  such,  it  cannot  be  rebutted.  But  a  pre- 
sumption of  fact  is  a  legal  conclusion  that  a  certain 
fact  has  arisen  because  in  the  common  experience 
of  mankind  it  ordinarily  would  arise  as  a  result  of 
certain  other  known  facts.  This  latter  presumption 
may  be  rebutted. 

Actual  Notice. 
Probably  no  difficulty  will  be  experienced  in 
getting  a  clear  idea  of  direct  actual  notice.  It 
should  be  remembered,  however,  that  it  must  be 
definite  and  certain:  mere  rumors,  vague  and  of 
no  authority,  cannot  serve  as  notice.  Nor  is  one 
bound  to  pa}^  attention  to  statements  by  anyone 
not  having  some  interest  in  the  property — that  is, 
from  strangers  to  the  title.  This  rule  has  been  laid 
down  by  a  number  of  courts,  but  it  is  rather  difficult 
to  reconcile  with  that  other  rule  requiring  the 
intending  purchaser  to  make  due  inquiry  and  inves- 
tigation and  which  holds  him  bound  by  the  informa- 
tion concerning  the  title  to  the  land  which  he 
thus  might  have  obtained;  and  as  a  different  rule 
has  been  pronounced,  and  followed  by  courts  of 
undoubted  authority,  which  seems  to  be  more  in  har- 
mony with  the  doctrine  of  '*  putting  one  on  his 
inquiry."  This  rule  is:  that  notice  "need  not  come 
from  a  party  or  his  agent,  but  it  is  sufficient  if  it  be 
derived  aliunde,  provided  it  be  of  a  character  likely 
to  gain  credit."    But  while  this  last  rule  seems  the 


14  MODERN  AMERICAN  LAW  LECTURE 

better  one,  there  is  still  some  difficult}^  in  deter- 
mining just  what  sort  of  information  will  put  the 
intending  purchaser  on  inquiry — will  amount  to 
notice,  in  other  words.  Certainly  mere  idle  rumors 
are  not  enough.  The  last  rule  says  that  the  informa- 
tion must  ''be  of  a  character  likely  to  gain  credit." 
Perhaps  this  is  as  definite  as  a  general  statement  can 
be  made.  Here,  as  in  so  many  instances,  what  is 
reasonable  under  all  the  circumstances  of  the  case 
must  be  the  final  guide.  It  has  been  held,  for 
instance,  that  among  circumstances  which  would  put 
a  party  upon  inquiry  are :  great  inadequacy  of  price, 
close  relationship,  close  intunacy,  or  business  deal- 
ings (although  it  has  been  questioned  whether  mere 
relationship  or  intimacy,  without  any  other  circum- 
stances, will  be  sufficient).  So,  too,  defective,  or 
irregular,  or  improper  recording  of  an  instrument, 
^'although  clearly  not  a  constructive  notice  under 
the  statute,  may  be  sufficient  to  put  a  purchaser  upon 
inquiry,  and  so  constitute  actual  notice." 

But  suppose  a  party  receives  a  statement  or  com- 
munication wdiich,  if  it  stood  alone,  would  be  actual 
notice,  either  direct  or  implied,  but  which  is  also 
accompanied  by  further  statements  which  have  a 
tendency  to  explain  or  nullify  the  effect  of  the  earlier 
statements :  may  the  party  rely  on  the  whole  of  the 
communication?  or  is  he  to  be  confined  only  to  that 
part  of  it  which  shows,  or  tends  to  show,  the  exis- 
tence of  some  prior  conflicting  claim  ?  In  such  cases 
the  courts  have  been  guided  by  the  following  prin- 
ciple: if  the  only  information  as  to  the  conflicting 
claim  comes  to  the  party  from  one  who  is  an  entire 


NOTICE  15 

stranger  to  the  transaction — one  who  has  no  inter- 
est of  any  kind  in  the  matter — and  this  stranger  also 
states  that  such  conflicting  claim  has  been  aban- 
doned, or  discharged,  or  that  it  no  longer  exists; 
then,  it  seems,  the  party  may  rely  upon  the  entire 
statement,  and  unless  there  is  some  other  fact  which 
should  indicate  a  special  reason  for  believing  the 
former  part  of  the  statement  to  the  exclusion  of  the 
latter  part,  he  is  not  ]3ut  upon  inquiry.  This  is  so, 
because  such  a  stranger  to  the  transaction  has  no 
interest  in  deceiving  the  purchaser  by  misrepresen- 
tation or  by  concealing  the  truth;  but  if  the  vendor 
or  mortgagor  himself  admits  that  his  title  was  defec- 
tive, or  anything  else  which  would  of  itself  amount 
to  notice,  and  also  states  that  such  defect  has  been 
cured  in  some  manner,  the  purchaser  will  not  be 
warranted  in  accepting  such  statement  in  full,  but 
must  look  with  some  suspicion  upon  the  declaration 
that  the  defective  title  has  been  cured,  and  must 
satisfy  himself  from  other  sources  that  such  part 
of  the  information  is  true.  He  is  put  upon  inquiry 
by  the  earlier  part  of  the  grantor's  statement — the 
admissions  as  to  defects  in  title — and  because  of  the 
informant's  strong  personal  interest  in  the  trans- 
action, which  would  tend  to  induce  him  to  misrepre- 
sent or  conceal  the  true  state  of  facts,  he  cannot 
rely  alone  upon  such  grantor's  explanation  of  those 
admissions.  The  admissions  concerning  defective 
title  are  in  the  nature  of  declarations  against  the 
grantor's  interest,  and  are  therefore  considered  to 
be  more  likely  to  be  true  than  the  latter  statements 
which  are  more  in  conformity  with  his  interests. 


16  MODERN  AMERICAN  LAW  LECTURE 

If  the  purchaser  receives  notice  of  some  conflicting 
claim,  and  makes  inquiry  concerning  it  from  the  one 
who  holds  or  asserts  it,  he  may  rely  upon  the  infor- 
mation received  from  such  claimant.  If,  upon  such 
inquiry  by  the  intending  purchaser,  the  adverse 
claunant  either  denies  the  existence  of  such  claim, 
or  keeps  silent,  or  states  it  to  be  of  a  certain  amount 
or  kind,  such  claimant  cannot  thereafter  assert  that 
the  purchaser  is  bound  by  notice. 

Constructive  Notice. 

It  has  alread}^  been  suggested  that  constructive 
notice  arises  from  presumption  of  law.  It  assumes 
that  the  part}^  has  had  no  actual  knowledge  or 
information  regarding  the  claim  or  fact.  Construc- 
tive notice  is  an  equitable  doctrine,  solely;  and  it 
has  been  distinguished  from  the  inference  of  knowl- 
edge, which  the  common  law  frequently  drew,  in 
this  way:  the  common-law  inference  relates  to,  and 
infers,  the  existence  of  actual  knowledge,  Avhile 
constructive  notice  does  not  infer  actual  knowledge, 
but  rather,  from  the  existence  of  certain  facts, 
imputes  knowledge  of  certain  other  facts.  For 
instance,  where  the  agent  of  a  party  has  notice  of 
some  outstanding  claims  adverse  to  the  title  v/hich 
the  party  is  about  to  acquire,  the  law  imputes  to  the 
principal  the  same  information  as  the  agent  had, 
and  so  the  principal  will  be  held  to  have  had  con- 
structive notice.  There  are,  however,  some  excep- 
tions to  this  general  rule.  For  instance,  it  must 
appear  that  the  agent  was  acting  as  such  at  the  time 
he  received  notice  in  order  that  it  may  be  binding 


NOTICE  17 

upon  the  principal ;  and  notice  coming  to  one  many 
years  before  he  acted  in  the  capacity  of  agent  for 
another,  will  be  held  not  binding  upon  the  latter. 
Also,  if  the  agent  is  liimself  the  author  of  the  fraud, 
the  principal  cannot  be  charged  with  notice.  There 
is  some  conflict  of  authority  over  the  question 
whether  or  not  it  is  necessary  that  the  information 
be  received  by  the  agent  in  the  course  of  the  same 
transaction  which  it  is  sought  to  have  affected  by 
the  constructive  notice,  but  the  weight  of  authority 
is  probably  on  the  side  of  such  requirement  except 
in  cases  where  the  notice  comes  during  some  trans- 
action closely  connected  with  and  shortly  prior  to 
that  in  question.  Of  course,  the  information  should 
be  such  as  to  materially  affect  the  principaPs  rights 
in  the  transaction,  and  must  be  such  that  it  becomes 
the  duty  of  the  agent  to  communicate  it  to  his  prin- 
cipal, although  it  is  not  essential  that  he  should,  in 
fact,  so  communicate  it,  in  order  to  charge  the  prin- 
cipal with  constructive  notice. 

So,  too,  the  possession  of  property  by  one  other 
than  the  grantor  will  be  constructive  notice  to  the 
grantee  of  the  adverse,  outstanding  claim,  either 
legal  or  equitable.  This  possession,  however,  must 
be  a  present  one,  and  must  be  inconsistent  with  the 
title  of  the  record  owner;  a  mere  former  possession, 
even  though  some  of  the  evidences  of  it  still  remain 
on  the  land,  has  been  held  insufficient,  and  so  also 
with  regard  to  a  possession  which  did  not  commence 
until  after  the  sale  was  made  to  the  party  sought  to 
be  charged  with  notice.  Moreover,  in  the  case  of 
moveable  property  which  is  usually  protected  by 


18  MODERN  AMERICAN  LAW  LECTURE 

title  papers,  possession  by  one  in  such  a  way  as  not 
to  be  inconsistent  with  ownership  by  another  person 
having  the  record  title  will  not  be  enough  per  se  to 
put  a  third  person  upon  his  inquiry  and  charge  him 
with  constructive  notice.  Thus,  it  has  been  held 
that  possession  of  a  vessel  by  one  as  master  thereof 
is  not  notice,  to  persons  dealing  with  the  vessel,  of 
a  prior  parol  purchase  by  such  master  of  a  half 
interest  in  the  vessel.  And  in  case  the  possession  of 
land  is  by  one  as  lessee,  it  is  constructive  notice  to 
the  intending  purchaser  not  only  of  the  tenant's 
rights  as  such,  growing  directly  out  of  his  lease,  but 
also  of  any  other  rights  or  interests  which  he  may 
have  acquired  in  the  land  by  reason  of  collateral 
agreements — such  as  a  contract  for  renewal  of  the 
lease,  to  convey  the  land,  or  the  like. 

Another  illustration  of  constructive  notice  is  found 
in  the  case  of  one  who  is  attempting  to  establish  his 
title  to  a  piece  of  land  and  is  obliged  to  rely  upon 
a  certain  deed,  or  a  series  of  deeds,  to  do  so.  Under 
such  circumstances  he  will  be  held  bound  by  con- 
structive notice  as  to  everything  affecting  the  land 
which  appears  in  the  chain  through  which  he  derives 
title.  This  is  true  whether  such  information  appear 
as  a  definite  recital  in  some  one  or  more  of  the  deeds 
in  the  chain,  or  whether  it  appear  upon  the  face  of 
the  deeds  merely  by  way  of  reference.  The  reason 
for  this  rule  is  clear  and  is  found  in  the  fact  that 
any  such  recital  or  reference  anywhere  in  the  chain 
of  title  operates  to  put  him  on  his  inquiry.  It  should 
be  remembered,  though,  that  there  may  be  recitals 
in  deeds  or  other  instruments  which  do  not  have 


NOTICE  19 

this  effect  of  notice :  a  purchaser  will  not  be  required 
to  take  notice  of  matters  set  forth  in  a  deed  which 
do  not  refer  to  nor  affect  his  rights  in  the  property 
in  question,  nor  give  other  persons  any  rights 
therein.  And  as  in  the  case  of  notice  by  possession, 
a  party  is  only  bound  by  deeds  or  instruments 
actually  in  existence  at  the  time.  A  deed  in  contem- 
plation merely,  but  not  executed,  although  made  out 
ready  for  execution,  will  not  serve  to  charge  the 
purchaser  with  notice.  But  if  a  deed  in  the  chain  of 
title  recites  or  refers  to  some  other  and  collateral 
instrument  which  w^ould  affect  the  title,  the  purchaser 
is  bound  by  notice  of  the  contents  of  such  collateral 
instrument  even  though  it  may  not  be  recorded; 
although  its  record  would  be  necessary  to  charge  him 
with  notice  if  it  had  not  been  mentioned  in  the  direct 
chain  of  title. 

Mention  has  already  been  made  of  the  recordation 
acts  of  the  various  states  in  this  country.  In  some 
of  the  states  such  recording  is  virtually  required, 
and  an  unrecorded  instrmnent  is  held  to  be  void  as 
against  subsequently  acquired  interests  in  good  faith 
for  valuable  consideration,  where  the  instruments 
showing  such  later  interests  are  first  to  be  placed 
upon  record.  In  other  states,  recording  or  register- 
ing is  permissive  merely;  but  even  there  the  holder 
of  such  unrecorded  title  will  be  postponed  to  the 
rights  of  a  subsequent  bona  fide  purchaser  for  value 
and  without  some  other  notice.  In  order  for  the 
registry  to  operate  as  notice,  however,  it  must  appear 
that  the  instrument  was  duly  executed  and  acknowl- 
edged or  proved  according  to  the  requirements  of 


20  MODERN  AMERICAN  LAW  LECTURE 

that  particular  jurisdiction  so  as  to  entitle  it  to  be 
recorded ;  it  must  be  such  an  instrument  as  the  stat- 
ute authorizes  or  requires  to  be  recorded;  in  many 
of  the  states — perhaps  the  majority — the  record 
must  be  in  the  proper  books.  For  instance,  a  deed 
recorded  in  the  book  of  mortgage  records,  or  of 
mechanic's  liens,  could  hardly  be  held  to  charge  one 
with  constructive  notice;  nor  can  one  be  charged 
with  notice  of  an  instrument  recorded  in  a  county 
other  than  that  in  which  the  land  in  question  is  situ- 
ated. The  test  being  that  when  one  examines  the 
record  he  shall  be  able  to  obtain  therefrom  full  infor- 
mation as  to  the  state  of  the  title  under  examination, 
it  is  held  generally  that  the  record  must  be  a  true 
copy  of  the  instrument  registered,  and  it  must  cor- 
rectly describe  the  property  affected  with  sufficient 
fullness  readily  to  identify  it.  A  party  is  entitled 
to  rely  upon  what  he  finds  in  the  record ;  and  it  will 
be  constructive  notice  only  of  what  is  contained 
within  itself. 

The  doctrine  of  lis  pendens  is  sometimes  referred 
to  as  being  one  kind  of  constructive  notice.  This 
is  hardly  correct,  but  the  doctrine  may  be  stated  here 
as  one  by  which  a  suit  in  chancery,  pending  and 
prosecuted  in  good  faith,  and  followed  by  a  decree, 
is  constructive  notice  to  any  person  acquiring  an 
interest  in  the  subject-matter  of  the  suit  from  the 
defendant,  pendente  lite,  of  the  equitable  and  legal 
rights  of  the  plaintiff  as  set  forth  in  his  bill  and 
settled  by  the  decree.  The  doctrine  of  lis  pendens 
is  only  applicable,  of  course,  to  those  who  are 
strangers  to  the  action  pending;  but  all  parties  to  a 


NOTICE  21 

suit,  if  they  have  been  properly  brought  into  court 
by  service  of  summons,  are  held  to  be  chargeable 
with  constructive  notice  of  all  steps  taken  in  the 
cause  subsequent  to  such  service.  This  constructive 
notice  applies  to  every  proceeding  in  the  cause,  dowTi 
to  and  including  the  judgment,  even  though  no  copies 
of  the  orders,  etc.,  were  served  upon  such  party — 
unless,  of  course,  the  court  had  ordered  such  service. 
It  makes  no  difference  that  the  party  sought  to  be 
charged  with  notice  has  not  in  fact  appeared  or 
entered  his  appearance  in  the  cause,  either  in  person 
or  by  attorney,  nor  that  he  has  no  actual  inf  oraiation 
of  the  various  steps  taken;  this  is  so,  because  the 
courts  presume  all  parties  to  be  always  in  court  after 
issue  is  joined,  either  attending  to  their  business 
there  in  person  or  by  attorney. 

NOTICE  AS  A  MATTER  OF  PROCEDURE 

In  many  cases  the  law  requires  notice  to  be  given 
to  one  party  before  the  other  is  allowed  to  maintain 
his  contention.  Thus,  it  may  be  required  as  a  pre- 
requisite to  the  making  of  a  motion  for  some  par- 
ticular order;  before  taking  an  appeal  to  a  higher 
court;  before  selling  land  for  delinquent  taxes  and 
the  like.  So,  too,  notice  may  be  required  as  a  part 
of  the  contract  between  the  parties  thereto — as  a 
condition  precedent  to  a  binding  obligation.  This 
requirement  of  the  law  as  to  notice  does  not  always 
take  the  form  of  an  express  provision  by  statute. 
If  it  is  sought  to  subject  a  person  to  a  penalty,  for 
instance,  for  the  neglect  of  some  statutory  duty, 
notice  to  perform  such  duty  is  usually  necessary 


22  MODERN  AMERICAN  LAW  LECTURE 

before  the  obligation  and  its  subsequent  liability  for 
neglect  to  fulfill  it  arise ;  and  unless  such  notice  has 
been  expressly  made  unnecessary  by  law,  proceed- 
ings without  notice,  under  such  circumstances,  have 
been  held  void  because  of  such  lack,  even  though  the 
statute  imposing  the  duty  made  no  provision  for  the 
giving  of  such  notice.  There  may  be  exceptions  to 
this  rule :  as  where  the  giving  of  notice  is  impossible, 
or  will  be  of  no  avail.  For  instance,  in  a  case  where 
land  was  being  sold  for  taxes,  the  statute  required 
that  a  notice  of  such  sale  be  posted  in  a  public  place 
where  the  land  to  be  sold  was  situated;  and  it  was 
held  that  such  posting  of  notice  was  not  necessary, 
as  it  appeared  that  the  place  where  the  land  was 
situated  was  absolutely  uninhabited. 

While  it  is  a  general  rule  that  a  notice  which  might 
ordinarily  be  required  is  not  necessary  where  the 
fact  as  to  which  the  notice  would  relate  is  equally 
known  to  both  parties,  or  where  the  party  otherwise 
entitled  to  notice  has  means  of  informing  himself 
from  some  definite  source,  yet  if  the  information 
concerning  the  fact  lies  more  particularly  Tsdthin  the 
knowledge  of  one  party  than  of  the  other,  notice  will 
probably  be  required.  But  if  A,  to  whom  notice  is 
due — that  is,  for  whose  protection  or  benefit  the 
notice  should  be  given — waives  it,  such  waiver  is  held 
to  be  equivalent  to  the  notice  itself,  and  no  further 
notice  is  required.  It  should  always  be  remembered 
that  where  the  statute  prescribes  notice,  such  statu- 
tory requirements  should  be  strictly  followed  both 
as  to  the  form  and  the  manner  of  giving  or  serving 
the  notice,  if  any  such  particulars  are  given.    But 


NOTICE  23 

where  the  statute  simply  requires  a  notice  to  be 
given,  without  stating  the  manner  of  serving  it,  the 
rule  has  been  laid  down  that  actual  notice — not  con- 
structive— will  alone  satisfy  the  statute.  It  is  always 
best  to  give  the  notice  in  writing;  and  where  it  is 
practicable,  the  notice  should  be  prepared  in  dupli- 
cate and  one  copy  left  with  the  person  to  be  served, 
while  his  acknowledgment  of  such  service  should  be 
endorsed  by  him  on  the  other  copy  and  kept  by  the 
party  giving  the  notice.  Then,  in  case  of  a  dispute 
as  to  the  time,  or  the  fact  of  giving  the  notice,  or  as 
to  its  contents  and  sufficiency,  definite  evidence  may 
be  offered  by  the  party  making  the  service.  It  must 
be  borne  in  mind,  however,  that  merely  acknowledg- 
ing service  of  written  notice  will  not  amount  to  a 
waiver  of  the  objection  that  the  service  was  made 
within  the  proper  time;  but  if  the  acknowledgment 
specifically  admits  due  service,  or  due  service  on  a 
certain  day,  the  rule  will  be  otherwise. 

In  most  instances  where  notice  is  required  by  law, 
either  by  statute  or  in  the  exercise  of  good  faith  and 
fair  dealing,  no  exact  form  need  be  followed.  Of 
course  if  the  statute  prescribes  a  certain  form,  it 
must  be  followed.  But  unless  the  form  set  forth  in 
the  statute  (where  one  is  set  forth)  is  mandatory  it 
may  be  considered  as  a  guide  merely ;  and  if  the  notice 
gives  the  necessary  information  to  the  other  party, 
and  does  not  mislead  him,  it  is  enough,  and  will  not 
be  vitiated  because  of  informalities  or  lack  of  artifi- 
cial drafting. 

While  it  is  always  best  to  give  a  required  notice  in 
writing,  as  already  pointed  out,  it  may  not  always  be 


24  IMODERN  AMERICAN  LAW  LECTURE 

necessary  to  do  so,  as  a  matter  of  law.  Where  a  con- 
tract requires  notice,  but  does  not  specify  how  it  shall 
be  given,  a  parol  notice  will  be  sufficient.  But  where 
a  statute  definitely  requires  notice,  or  authorizes  it, 
in  a  legal  proceeding,  it  is  now  well  settled  that  writ- 
ten notice  is  meant ;  and  in  such  cases  parol  notice  is 
not  sufficient.  The  same  is  true  also,  where  the  statute 
requires  a  notice  to  be  filed.  As  illustrating  what 
will  satisfy  the  requirement  of  having  the  notice  in 
writing,  it  has  been  held  that  notice  given  by  tele- 
graph was  sufficient;  but  this  probably  would  not 
satisfy  the  law  if  it  also  required  the  notice  to  be 
served  by  some  particular  person,  or  by  some  one  of 
a  specified  group.  And  written  notice  should  be 
signed.  This  is  usually  held  to  be  essential  in  a  case 
of  statutory  notice,  unless,  perhaps,  it  might  be 
waived  if  the  person  whose  duty  it  was  to  sign  the 
notice  has  delivered  it  in  person  to  the  one  entitled 
to  receive  it.  In  many  instances  it  will  be  found  that 
the  statute  requires  the  notice  to  be  given  by  some 
definite  person,  such  as  the  sheriff,  constable,  coroner, 
or  some  other  officer,  or  by  the  party  himself  or  his 
attorney.  Where  such  is  the  case,  the  law  must  be 
carefully  observed,  and  service  by  another  than  the 
one  specified  will  not  be  sufficient.  Sometimes  it  will 
be  found  that  the  notice  is  to  be  served  by  either  some 
designated  officer,  or,  in  the  option  of  the  party,  it 
may  be  served  by  anyone  not  interested  in  the  litiga- 
tion or  the  subject-matter  thereof.  Where  the  law 
requires  service  of  notice  by  some  specified  person, 
and  others  join  him  in  the  giving  of  such  notice,  such 
service  will  not  be  invalid. 


NOTICE  25 

HOW  NOTICE  TO  BE  SERVED 

The  requirements  of  the  statutes  of  the  different 
states  as  to  the  manner  in  which  notice  is  to  be  given 
are  widely  variant;  and  an  examination  of  the 
statutes  of  any  one  state  will  reveal  a  considerable 
difference  in  the  manner  in  which  notice  may  be 
given  under  all  the  different  circumstances.  Some- 
times the  notice  may  be  given  by  publication  or  by 
posting ;  but  it  is  the  general  rule  that  where  the  l^w 
requires  a  notice  at  all  and  does  not  also  provide  thj^, 
manner  in  which  it  is  to  be  given,  it  is  actual  notice 
that  is  meant.  Under  such  circumstances,  a  publica- 
tion in  a  newspaper  merely — even  in  a  newspaper 
subscribed  for  and  taken  regularly  by  the  person 
sought  to  be  affected  by  notice — will  not  be  sufficient 
to  charge  him  with  notice ;  it  would  still  be  necessary 
to  show  further  that  such  person  had  seen  or  read 
the  notice,  in  order  to  charge  him  with  it.  But  where 
the  statute  or  an  order  of  court  provides  that  the 
notice  shall  be  given  by  publication  or  by  posting  in 
some  public  place,  then,  of  course,  such  publication 
in  the  designated  paper  or  papers,  or  the  posting, 
will  give  constructive  notice ;  and  the  same  would  be 
true  if  the  notice  were  given  in  any  other  manner — 
such  as  by  mailing,  for  instance — in  obedience  to  the 
positive  requirement  of  law  or  court  order. 

The  length  of  time  of  notice,  if  none  is  specified 
by  the  law  or  order  of  court,  is  to  be  a  reasonable  one. 
What  is  a  reasonable  time  may  vary,  under  different 
conditions.  Thus,  a  notice  to  take  depositions  in  the 
same  or  a  nearby  town  would  be  reasonable  if  it  gave 


26  MODERN  AMERICAN  LAW  LECTURE 

but  one  or  two  days'  time;  while  if  the  depositions 
were  to  be  taken  in  a  distant  part  of  the  country, 
reasonable  notice  might  require  a  week  or  more ;  the 
notice  should  allow  at  least  one  day  for  preparation 
and  sufficient  time  to  travel  to  the  place  of  taking  the 
deposition  by  the  ordinary  means,  not  counting  Sun- 
days. Where  the  length  of  time  of  the  notice  is  set 
forth  in  the  statute  or  legal  order,  the  day  of  service 
is  usually  excluded  and  the  last  day  of  the  period  is 
included,  in  the  computation.  Holidays  and  Sundays 
are  sometimes  counted  and  sometimes  not,  depend- 
ing largely  upon  the  statutes  or  the  custom  of  the 
particular  jurisdiction.  It  is  the  rule,  however,  that 
if  any  dispute  arises  as  to  the  method  of  computation, 
that  method  will  be  selected,  or  the  statute  will  h& 
construed,  most  liberally  in  favor  of  him  who  is  to 
be  affected  by  the  notice. 

The  statutes  providing  for  the  publication  in  news- 
papers of  notices  in  various  matters  frequently 
specify  in  considerable  detail  the  character  of  the 
paper  to  be  selected,  the  language  in  which  the  notice 
is  to  be  printed,  how  often  the  notice  must  appear, 
where  the  paper  selected  is  to  be  published,  etc.  The 
statute  must  of  course  be  followed,  at  least  in  the 
main.  It  has  been  held  that  publication  in  a  paper 
printed  in  the  place  designated  and  bearing  substan- 
tially, though  not  identically,  the  same  name  as  that 
specified,  is  sufficient;  and  where  a  paper  changed 
its  name  between  the  time  of  designating  it  and  the 
time  of  publishing  the  notice,  but  otherwise  the  iden- 
tity of  the  paper  was  unchanged,  the  publication  was 
held  to  be  valid.    It  is  often  required  that  the  publica- 


NOTICE  27 

tion  shall  be  in  a  newspaper  ''of  general  circulation" 
or  in  *'a  secular  newspaper,"  and  such  requirement 
is  satisfied  by  publishing  the  notice  in  a  paper  issued 
periodically  and  containing  matters  of  a  general  and 
secular  character,  although  it  is  devoted  largely  or 
almost  entirely  to  legal  or  financial  or  commercial  or 
trade  matters  and  circulates  scarcely  at  all  outside 
the  profession  or  trade  to  whose  interests  it  is  de- 
voted, in  its  own  coimnunity.  So  also,  a  paper  issued 
and  sent  to  subscribers  on  a  week  day  is  held  to  be  a 
secular  paper,  although  its  name  would  indicate  it 
to  be  a  Sunday  paper  only. 

The  general  rule  is  that  where  the  statute  does  not 
prescribe  any  particular  language  either  for  the 
paper  or  for  the  advertisement  of  notice,  the  notice 
must  be  in  the  English  language  in  a  new^spaper 
printed  in  the  same  language.  But  this  may  be  varied 
by  circumstances,  as  where  the  city  ordinance  re- 
quired notice  to  be  published  in  three  daily  papers, 
and  only  two  were  printed  in  English  in  the  city, 
selecting  a  German  paper  for  the  third  w^as  approved 
by  the  court.  If  the  requirement  be  that  publication 
must  be  in  a  daily  paper,  it  will  be  satisfied  by  insert- 
ing the  notice  in  a  paper  issued  six  days  a  week, 
\vhether  the  omitted  day  be  Sunday  or  a  secular  day. 

The  statutes  of  the  different  states,  or  even  of  the 
same  state,  wall  be  found  to  read  differently  as  to  the 
number  of  times  a  notice  must  be  published.  Wliere 
it  simply  calls  for  one  week's  publication,  one  inser- 
tion in  a  weekly  paper  will  suffice ;  but  if  the  statute 
requires  a  week's  advertisement  in  a  daily  news- 
paper, it  must  be  inserted  each  day  for  a  week.    And 


28  MODERN  AMERICAN  LAW  LECTURE 

if  the  order  is  for  advertisement  of  a  judicial  sale 
in  a  daily  paper,  no  time  being  specified,  the  publica- 
tion each  day  until  the  day  of  the  sale  is  presumed  to 
have  been  intended. 

There  is  considerable  conflict  of  opinion  as  to  the 
right  method  of  computing  time  of  notice  under  some 
of  the  publication  statutes.  For  instance,  where  the 
law  directs  publication  for  a  certain  niunber  of  weeks 
— say  three — when  is  the  giving  of  notice  fully  com- 
plete? If  the  notice  is  first  published  on  the  7th  of 
the  month,  the  second  publication  will  come  on  the 
14th  and  the  third  and  last  on  the  21st  (we  are  assum- 
ing publication  in  a  weekly  paper,  for  unless  daily 
publication  is  required  the  notice  will  usually  appear 
but  once  each  week)  ;  is  notice  complete  on  the  day 
of  the  last  publication,  the  21st  ?  or  is  it  not  complete 
until  the  close  of  the  28th  day  of  the  month?  It  is 
certain  that  if  the  law  requires  tliree  iveeUs'  notice 
to  be  given,  such  notice  will  not  be  complete  until  the 
expiration  of  three  full  weeks  from  the  time  of  the 
first  publication;  and  by  the  probable  weight  of 
authority  the  same  method  of  computation  would  be 
employed  w^here  the  law  requires  notice  to  be  pub- 
lished for  ** three  successive  weeks." 

After  publication  has  been  made,  it  is  frequently 
the  further  duty  of  the  party  giving  the  notice  to 
file  with  the  court  or  other  designated  public  officer 
an  affidavit  of  proof  of  such  publication.  This  should 
be  an  ordinary  affidavit,  signed  and  sworn  to  by  the 
owner,  publisher,  or  manager  of  the  paper  in  which 
the  notice  was  published ;  should  state  the  number  of 
times  the  notice  appeared  in  the  paper,  giving  the 


NOTICE  29 

dates  of  the  first  and  last  issues  at  least  and  stating 
that  it  was  published  regularly  and  successively  each 
week  from  the  first  to  the  last  dates  inclusive ;  and  it 
should  be  attested  by  an  officer  authorized  to  admin- 
ister oaths.  The  affidavit  should  also  contain  a  copy 
of  the  advertised  notice,  but  it  is  not  necessary  that 
this  should  be  written  or  typed  into  the  body  of  the 
affidavit;  it  may  be  cut  out  of  the  newspaper  and 
pasted  at  one  side  of  the  affidavit  and  incorporated 
therein  by  reference. 

Not  only  must  the  notice  contain  a  sufficient  de- 
scription of  the  property  or  rights  claimed  and  of 
the  nature  of  the  claim  itself  to  give  full  information 
to  the  party  notified,  but  it  must  ordinarily  be 
directed  to  him  (or  to  them  if  more  than  one)  by 
name.  Sometimes,  however,  it  is  not  necessary  to 
give  the  names :  as  where  it  became  necessary  to  pub- 
lish notice  to  a  number  of  non-resident  landowners, 
a  notice  addressed  to  the  "non-resident  owners  of  the 
following  described  lands, ' '  describing  the  lands,  was 
considered  by  the  court  to  be  enough. 

Notice  may  sometimes  be  served  by  mail,  by  statu- 
tory provision.  If  such  service  is  relied  on,  the  party 
giving  the  notice  must  be  able  to  show^  that  he  depos- 
ited in  the  post  office  or  in  a  government  letter  box, 
or  handed  to  a  postman  on  his  route,  a  letter  contain- 
ing the  notice,  duly  addressed  to  the  party  to  be 
charged  with  notice  and  with  the  postage  fully  paid. 
In  order  that  he  may  have  proof  of  such  service — 
and  this  is  especially  true  where  it  is  necessary  that 
the  party  to  be  charged  have  actual  notice — it  is 
always  advisable  to  register  the  letter  and  ask  for  a 


30  MODERN  AMERICAN  LAW  LECTURE 

receipt  to  be  returned ;  then,  and  then  only  in  case  of 
a  dispute,  can  one  be  fairly  certain  that  his  service 
of  notice  by  mail  has  been  received  by  the  other  party. 
The  question  may  sometimes  arise  whether  notice 
should  be  served  on  a  party  himself,  or  upon  his  attor- 
ney. The  answer  to  this  question  must  depend  largely 
upon  the  statutory  requirements  as  to  the  various 
notices  which  may  be  necessary,  and  upon  the  circum- 
stances. It  may  be  stated  as  a  general  rule  that  where 
notices  are  required  in  the  course  of  judicial  proceed- 
ings already  pending,  and  the  party  to  be  notified  is 
represented  by  an  attorney,  the  notice  should  be 
served  upon  such  attorney,  and  not  upon  the  party 
himself ;  but  if  he  is  not  represented  by  attorney,  or 
if  his  attorney  has  died  and  he  has  failed  to  appoint 
another  one  within  a  reasonable  time,  notice  should 
be  served  directly  upon  the  party.  In  case  the  party 
himself  has  died,  it  has  been  held  that  service  of 
notice  upon  his  attorney  was  invalid ;  it  should  prob- 
ably be  served  upon  the  personal  representative  of 
the  deceased,  or  upon  the  attorney  of  such  represen- 
tative. It  will  be  found,  however,  that  the  statutes 
frequently  indicate  upon  whom — the  party  or  his 
attorney — notice  shall  be  served ;  and  if  such  statute 
is  mandatory  in  its  expression,  it  must  be  strictly  fol- 
lowed ;  but  if  it  is  permissive  or  declaratory  merely, 
notice  may  probably  be  served  upon  either  and  be 
valid. 


l(/Ul^. 


GAYLAMOUNT® 
PAMPHLET  BINDER 

Syracuse,  N.Y. 
Stockton,  Calif. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  853  336    6 


